A weblog for students engaged in doctoral studies in the field of human rights. It is intended to provide information about contemporary developments, references to new publications and material of a practical nature.

Tuesday, 27 July 2010

The Irish Centre for Human Rights, NUI Galway, in conjunction with Bank of Ireland announces a one-year fellowship in Human Rights Law for a scholar of note from a developing country at the post-doctorate level. Applications are invited for this fellowship from academics of any developing country whose research output and teaching focus on, or relate to, the area of human rights. While the Centre is engaged in the teaching and research in international human rights law, this fellowship is not restricted to scholars with legal backgrounds. Interested candidates should send in their complete CV, outlining their engagement with human rights issues or organisations and teaching interests. In addition candidates are also requested to send a brief abstract of research they wish to pursue during their time at the Irish Centre for Human Rights. It is also desirable to submit at least two letters of recommendation with the application.
The application package should be sent addressed to:
Dr. Kathleen Cavanaugh, Irish Centre for Human Rights, National University of Ireland, Galway, Republic Of Ireland. Applications may also be made by e-mail to: kathleen.cavanaugh@nuigalway.ie
The following terms and conditions are applicable:
1. The Fellowship is tenable at the Irish Centre for Human Rights in Galway for one year beginning as soon in the 2010-11 academic year as possible preferably by September 2010 but by no later than October 2010.
2. The fellow is required to reside in Galway during the fellowship
3. Recipients will be selected on the basis of engagement with human rights issues – gauged by research output and teaching interests, work within human rights NGOs and postgraduate qualifications in the field.
4. It is desirable that the recipient have experience in his/her local human rights NGOs.
5. The application should highlight a specific research project that will be undertaken during the year in Ireland
6. The total fellowship amount is €20,000 for one year
7. The recipient of the Fellowship is responsible for his or her own travel to and from Galway.
8. The recipient will be responsible for his/her own accommodation while in Galway. The university will provide assistance in locating accommodation.
9. The recipient will accept the right of the Irish Centre for Human Rights, NUI Galway and the Bank of Ireland to make reference to the holder in any promotional statements made in connection with the Fellowship.
10. All publication, reports, conference papers etc. that may be produced as a result of the Fellowship must acknowledge the Irish Centre for Human Rights, NUI Galway.
11. Applications will be considered by a special academic panel nominated by the President. The President will, on the advice of the panel, announce the name of the recipient of the Fellowship to the University Governing Authority and appropriate academic bodies.
12. On completion of the Fellowship, the candidate will be obliged to prepare a final report for presentation to NUI Galway.
For further information on the Centre and the University, please visit: http://www.nuigalway.ie/human_rights
Please note: applications must be received by August 1, 2010. The Fellow will be announced by August 10th. The recipient of the award must be willing to take up the position by no later than the end of October 2010.

Saturday, 17 July 2010

The Irish Centre for Human Rights was established in its new premises in January 2000. We are marking the tenth anniversary this year with a series of activities that are concentrated on the 19-20 November weekend.
The weekend will feature an academic conference on the theme 'Forgotten Rights, Forgotten Concepts'. The keynote speaker is Manfred Nowak, who is the special rapporteur on torture. It will begin on the afternoon of 19 November and continue through the following day.
There will be a gala banquet the evening of 19 November (space is limited, so reserve your tickets soon) at Galway's Glenlo Abbey hotel. Senator David Norris will be the master of ceremonies.
Another activity will be a photo exhibition on human rights themes, entitled 'Through the Lens' made up of work by students and graduates of the Centre. The exhibition will actually be opened at Kenny's Book Shop in mid-October.
On thevening of 20 November, when the conference is over, there will be a more informal party at the Galway Rowing Club on the Corrib River, featuring Irish traditional music.

David Keane, who is a lecturer at the Law School of Middlesex University in London, and a PhD graduate of the Irish Centre for Human Rights, has just published an article entitled 'Survival of the Fairest? Evolution and the Geneticization of Rights' in the Oxford Journal of Legal Studies. Here is the abstract:

The process of evolution is largely absent from philosophical legal literature, to the extent that the possibility of a genetic origin of rights has not been explored. This is striking given that human rights theory stems from natural law and natural rights, which seems to imply a potential link with natural selection. Furthermore, the concept of nature has played a significant role in the philosophical foundations of international legal norms of rights and responsibilities. On the surface it may seem desirable to link rights to genetics. However, this approach can undermine criticism of genetic research and risks subordinating rights-based analysis to a problematic endeavour. The article looks to the discourse of ‘geneticization’ to provide a critique of future research into ‘law as evolution’. It recommends shifting jurisprudential thinking beyond the confines of bioethics, in line with future advances in biological research into the genetic origins of rights.

Friday, 16 July 2010

Earlier this week, a ruling of the Trial Chamber was published on this blog in which a spokesperson for the Office of the Prosecutor was chastised by the judges for giving misleading statements to the press. Today’s Guardian has a good example of this phenomenon.
The Prosecutor has authored an article that distorts the decision of the Pre-Trial Chamber issued at the beginning of the week authorizing three genocide charges in an arrest warrant directed against President Al-Bashir.
Here are the first paragraphs of the article, cited verbatim.

No more excuses. No more denial. This week, the international criminal court issued an arrest warrant for three charges of genocide against the president of Sudan, Omar al-Bashir.
The world once claimed ignorance of the Nazi atrocities. Fifty years later, the world refused to recognise an unfolding genocide in Rwanda. On Darfur, the world is now officially on notice.
The genocide is not over. Bashir's forces continue to use different weapons to commit genocide: bullets, rape and hunger. For example, the court found that Bashir’s forces have raped on a mass scale in Darfur. They raped thousands of women and used these rapes to degrade family and community members. Parents were forced to watch as their daughters were raped.
The court also found that Bashir is deliberately inflicting on the Fur, Masalit and Zaghawa ethnic groups living conditions calculated to bring about their physical destruction. Millions of Darfuris are living in camps for displaced persons and, at the disposal of Bashir's forces, experiencing an ongoing genocide. They are helpless, voiceless and with no hope for the future. Darfuris need other voices to help end a genocide that should have been stopped years ago. We can still stop it but we must stop it now. The court's recent decision could provide a last chance for the world to react properly, to transform "never again" from a promise into a reality.

This is quite misleading. The Court did not find ‘that Bashir’s forces have raped on a mass scale in Darfur’. The Court did not find ‘that Bashir is deliberately inflicting on the Fur, Masalit and Zaghawa ethnic groups living conditions calculated to bring about their physical destruction’. The Court did not – and would not – do anything to suggest the issue of whether or not genocidal acts had taken place was actually decided. It merely issued an arrest warrant.
The Court applied a test set out by the Appeals Chamber, based upon article 58. It said that there were ‘reasonable grounds to believe’ that rapes were perpetrated. This test is significantly lower than the ‘substantial grounds’ test of article 61. It is much lower than the ‘beyond reasonable doubt’ test of article 66. Experts familiar with the Rome Statute and criminal lawyers generally will understand this point. But the average reader of the Guardian may well be misled by the Prosecutor's words into believing that the Court actually reached the conclusion that Bashir’s forces raped on a mass scale in Darfur, or that Bashir was deliberately inflicting conditions calculated to bring about the destruction of ethnic groups.
Shouldn’t the Prosecutor remind readers that the presumption of innocence continues to apply? Shouldn’t he point out that this is only an arrest warrant, and that the issue as to whether the crimes took place and whether Bashir was responsible remains to be determined? Is this sort of statement really compatible with a Prosecutor who is supposed to show a measured neutrality and who should, according to article 54, ‘investigate incriminating and exonerating circumstances equally’? I don't ever recall such extragant language from prosecutor's at the other international criminal tribunals.
The statement begins with the words: ‘No more excuses. No more denial.’ It is an unfortunate use of the word ‘denial’, made even more ugly by the reference in the following paragraph to the Nazi holocaust. By using the word 'denial', the implication is that those who qustion whether genocide is the appropriate characterization of crimes committed in Darfur are in the same camp as the anti-Semitic hatemongers who claim there were no gas chambers at Auschwitz. Is the Prosecutor suggesting that the judges of the Pre-Trial Chamber who issued an arrest warrant in 2009 against President Al-Bashir for crimes against humanity and war crimes were ‘deniers’? That is how I would read his statement, and it is wrong and unfair.
The judges in this week’s decision who issued the arrest warrant on genocide charges did not disagree with the factual findings of the judges who issued the first arrest warrant in March 2009. The only question was the standard to be applied in deciding to issue an arrest warrant. The Prosecutor is making a lot more of this week’s decision than it deserves, and in doing so is suggesting that the earlier Trial Chamber was composed of ‘deniers’.
Let me point out that in the first two arrest warrants issued with respect to Darfur, the Prosecutor himself did not seek genocide charges. In his Guardian article, he says that Al-Bashir used Harun to co-ordinate genocidal attacks. But he never charged Harun with genocide. So was the Prosecutor, too, in 'denial' until he suddenly became obsessed with genocide charges in July 2008?
The implication in the third paragraph that the Court found the genocide was continuing is also quite misleading. It results from the assertion, in the third paragraph, that ‘the genocide is not over’, followed by the words, in paragraph 4, that ‘the Court also found’. It is compounded by the claim that the Pre-Trial Chamber found that ‘Bashir is deliberately inflicting…’ Note the use of the present tense.
But the Court made no statement or finding about any ongoing genocide. In fact, as this week's ruling makes clear, the Court refused to hear any new evidence. Thus, the decision was based on the very evidence that was before the Pre-Trial Chamber when it issued the first arrest warrant in March 2009. In that ruling, the Court turned to materials other than those supplied by the Prosecutor, including authoritative UN reports. It said that ‘the materials provided by the Prosecution in support of the Prosecution Application reflect a situation within the IDP Camps which significantly differs from the situation described by the Prosecution in the Prosecution Application’.
If the Prosecutor had succeeded in getting the Court to consider new and more recent evidence, I suspect the conclusion would have been that there is not serious evidence of ongoing genocide in Darfur.
Readers of the blog are referred to recent reports to the Security Council by Ibrahim Gambari, who is Joint Special Representative for the African Union and the United Nations Hybrid Operation in Darfur. He reported to the Security Council in May, and again in June, telling of some renewed fighting – much of it between rebel groups themselves – but did not say anything to suggest an ongoing genocide in the camps for internally displaced persons (see UN Doc. S/PV.6318, UN Doc. S/PV.6338) In May, Gambari told the Security Council: ‘‘In the areas of security and the protection of the civilian population, some progress has indeed been made, but pockets of instability remain.’ In June, he said, following a meeting with the Government, ‘the Government of the Sudan gave instructions to the relevant agencies to allow, immediately and wherever possible, access for both UNAMID and the humanitarian agencies’. Does this sound like genocide?
Here is the discussion of the situation in the camps in the most recent report on Darfur from the Secretary-General (‘Report of the Secretary-General on the African Union-United Nations Hybrid Operation in Darfur (UNAMID)’, UN Doc. S/2010/213), issued in April 2010:

46. The humanitarian situation in the well-established camps for internally displaced persons remains stable. During the reporting period, food distributions carried out by the World Food Programme at some 300 points throughout Darfur regularly reached more than 95 per cent of the intended beneficiaries. Approximately 4.2 million vulnerable people continued to receive the direct food assistance of the Programme in this manner.
47. The continuous availability of a safe water supply was ensured for more than 1.2 million internally displaced persons through support for the operation and maintenance of more than 650 water systems, including the chlorination of the water supply. During the reporting period, a safe water supply was provided for 32,500 additional internally displaced persons and hosting communities through the construction of new water sources and was re-established for 26,000 through the rehabilitation of existing water sources.
48. Bilateral efforts are under way on the ground to provide assistance to internally displaced persons who are already returning voluntarily or who may decide to do so in the near future.

Does this sound like ongoing genocide?
In June, the Independent Expert of the Human Rights Council issued a report (‘Report of the independent expert on the situation of human rights in the Sudan, Mohammed Chande Othman’, UN Doc. A/HRC/14/41/Add.1). He said: ‘While significant progress has been made towards the protection of women, acts of sexual violence, particularly against internally displaced women and girls, continue to be of concern’ Referring to the humanitarian assistance situation, he wrote:

27. In the aftermath of the expulsion on 4 March 2009 of 13 non-governmental organizations from Darfur, the Government took positive steps towards facilitating humanitarian assistance in Darfur, including by publicly welcoming the remaining and certain new non-governmental organizations to work in the region. In August 2009, a high level committee on humanitarian affairs, comprising senior Sudanese officials, representatives of the diplomatic community, the United Nations, regional and nongovernmental organizations endorsed the creation of a mechanism to verify the voluntary return of internally displaced persons in accordance with international humanitarian principles. Humanitarian access in Darfur was uneven during the reporting period. Access to urban areas outside the State capitals improved thanks to the presence of UNAMID team sites, while access to other areas, such as Jebel Marra and Jebel Moon, in West Darfur, and Kass, in South Darfur, were restricted owing to renewed fighting between Government and rebel forces and intertribal clashes.

Does this sound like ongoing genocide?
The Prosecutor is free to apply for a new arrest warrant for genocide, dealing with the current situation, but he has not done so. If he tries, the current UN reports on Darfur will not be very helpful to him.

Thursday, 15 July 2010

The release of Thomas Lubanga, who is the first person to be tried by the International Criminal Court, was ordered this afternoon by the Trial Chamber. The Chamber also gave the Prosecutor leave to appeal its decision staying proceedings, issued last week.
This is a bit of déjà vu all over again, to quote the late, great Yogi Berra. Two years ago, similar controversies arose between the Chamber and the Prosecutor. At that time, a solution was found, and the trial permitted to proceed.
The Chamber has suspended the effect of its decision to release Lubanga for five days, giving the Prosecutor enough time to file an appeal and to request the Appeals Chamber to suspended the decision to release the accused. I'm going to be in The Hague next week. If Lubanga's free for dinner on Wednesday, he can be my guest.Thanks to Yvonne McDermott.

Wednesday, 14 July 2010

A recent 'ruling' by the Trial Chamber in Lubanga has just been brought to my attention. The Chamber chastised Beatrice le Frapper du Hellen, who is a senior official in the Office of the Prosecutor, for remarks that she made in an interview with the lubangatrial.org blog.
The Chamber referred to the fact that much of the Lubanga trial has not been open to the public.Accordingly,
the public needs to be able to trust the published statements of those involved in the case, as reflecting, in a suitably balanced way, the evidence that has been heard and the decisions that have been made. It is important that in media statements there is a clear and accurate description as to whether issues that are reported have been decided or are still unresolved. Most importantly, and as a matter of professional ethics a party to proceedings is expected not to misrepresent the evidence, to misdescribe the functions of the parties or the Chamber, or to suggest or imply without proper foundation that anyone in the case, including the accused, has misbehaved.
The Chamber said that Beatrice le Frapper du Hellen had not abided by these principles.'in a manner that is prejudicial to the ongoing proceedings (in the sense that they tend to prejudice the public's understanding of the trial), which tends to bring the Court into disrepute'. It said it would take no further action than to express 'the strongest disapproval of the content of this interview' but warned that 'if objectionable public statements of this kind are repeated the Chamber will not hesitate to take appropriate action against the party responsible'.
This issue is not expressly regulated by the Rome Statute or the Rules of Procedure and Evidence, and we may well ask on what the Trial Chamber might base its authority to 'take appropriate action' in the case of 'objectionable public statements'. This is part of a larger issue that is looming with respect to the implied or inherent powers of the judges at the Court. In last week's decision on the stay in Lubanga, the Trial Chamber seemed to think it had the power to order the Prosecutor to do certain things, such as reveal names of 'intermediaries'. But does it really have such a power? I think that its authority to stay proceedings in the event of a flagrant denial of the right to a fair trial cannot be questioned, and to that extent the decision certainly has a legal basis. But that is because the Chamber controls the trial itself. But can it make orders, and sanction people, for activity outside of the courtroom? Where does this power come from? And if it exists, where does it end? Should I, as an ICC-obsessed blogger, start to worry that I might too be subject to 'appropriate action' if I make an 'objectionable public statement'? I am inclined to think that it could stay the proceedings if a third party - such as myself - made an 'objectionable public statement' that drastically compromised the fairness of the trial itself, but that it can do no more than that.
The views of readers of the blog on this issue would be welcomed.Thanks to Yvonne McDermott

Tuesday, 13 July 2010

Yesterday, a Pre-Trial Chamber of the International Criminal Court issued a second warrant of arrest against President Al-Bashir of Sudan adding charges of genocide. These had earlier been rejected in a 4 March 2009 ruling, but the decision was overturned in January by the Appeals Chamber which found the standard set by the Pre-Trial Chamber to be excessive. I have always thought that the Pre-Trial Chamber was doing the Prosecutor a big favour, by narrowing the arrest warrant to charges that he had a realistic chance of proving.
The reasoning in yesterday’s decision is quite simple, really. The Pre-Trial Chamber had said that the finding that Bashir had acted with genocidal intent was not the only reasonable conclusion, and therefore rejected the arrest warrant on that ground. Later, the Appeals Chamber said that this was too high a standard, and that as long as genocidal intent was a reasonable conclusion (rather than the only reasonable conclusion), the warrant should be issued. Yesterday, a differently constituted Pre-Trial Chamber said that since the first Pre-Trial Chamber had already concluded genocidal intent was a reasonable conclusion, albeit not the only reasonable conclusion, that therefore the warrant should be issued.
The Pre-Trial Chamber goes on to examine whether various material elements of genocide, such as killing and so on, are also present. This was never really much of an issue and the discussion here is relatively brief.
The consequence of this decision should not be exaggerated. The Prosecutor must still prove genocide beyond a reasonable doubt. At the International Criminal Tribunal for the former Yugoslavia, the Prosecutor obtained indictments against many suspects on charges of genocide but only succeeded in proving a few of them. Indeed, only last month, in Popovic et al. a Trial Chamber of the Yugoslavia Tribunal registered three convictions for genocide; the only two previous convictions for genocide were reversed on appeal. Trial Chambers have also dismissed many charges of genocide at trial.
Applying the ‘reasonable grounds’ standard at the International Criminal Court in the manner indicated by the Appeals Chamber, it should be possible to obtain an arrest warrant on genocide charges in most cases involving ethnic violence. That doesn’t mean the cases will stand up at trial, as the Prosecutor at the Yugoslavia Tribunal well knows.
There is a certain magic or mystique about the word 'genocide'. Charges of crimes against humanity are often regarded as being almost banal, alongside the 'crime of crimes'. This is not legally accurate, of course. Crimes against humanity are among 'the most serious crimes of concern to the international community as a whole'. There are what the Nazis were convicted of at Nuremberg. But for many, absent charges of genocide it is as if the violence and suffering are being downgraded unacceptably. The corrollary of this is that labelling something genocide creates enormous political momentum. The Pre-Trial Chamber's ruling, however modest the grounds on which it is based and however unlikely the chances of success of the genocide counts at trial, may nevertheless have a dramatic political effect.

Sunday, 11 July 2010

Every five years, since 1975, the Secretary-General has prepared a report on the status of the death penalty. The reports include statistical tables, and are based on questionnaires circulated to Member States as well as on other sources. These reports provide an extremely useful mapping of the progress in the reduction and eventual elimination of capital punishment. The first report was actually quite pessimistic. According to the Secretary-General:
It remains extremely doubtful whether there is any progression towards the restriction of the use of the death penalty. Periods of abolition or non-use may be succeeded by widespread executions in a highly unstable political situation or by a sudden return to the death penalty as a sanction where a state feels insecure. Moreover, in a few States where serious forms of terror and violence have been experienced, the death penalty has been used increasingly as counter-terror, or deterrence...
What a misjudgment that was! Since 1975, every year two to three States have abandoned the use of capital punishment. Today, only a small number of States - about 35 - still resort to the death penalty. If the consistent pattern since 1975 is maintained, universal abolition cannot be much more than a decade away.

The latest of the five-year or 'quinquennial' reports was issued two months ago. Although the more recent are generally available somewhere on the UN website(s), the early reports are not accessible on line, to my knowledge. In order to make this material more accessible, I am posting all of the reports:

Looking through some old files, I stumbled upon a pdf of UN Doc. A/2929. I don’t know where I got this, but I could not find it on the internet and am therefore posting it here to make it available to others. No student of human rights should be without a copy of this seminal document in his or her library.
This report is very important in the history of the two human rights covenants. It was prepared by the UN Secretariat in 1955, once the Commission on Human Rights had finished its work on the draft covenants and the documents were then being submitted to the General Assembly for debate in the Third Committee. It took another decade for the Third Committee to review the texts, which were significantly modified before final adoption.

Iran remains the darkest and most barbaric spot on the planet in terms of capital punishment. It is one of the very few countries where the rate of executions is actually increasing. Moreover, the death penalty is practiced for such ‘crimes’ as adultery and homosexual conduct among adults.

Sakineh Mohammadi Ashtiani, who is a 43-year-old widow and mother of two children, has been facing execution by stoning for adultery. Some recent reports suggest that Iran has retreated from its plans, following international protests, but that it will still conduct the execution by hanging.
Meanwhile, a so-called Iranian human rights ‘expert’, Mohammed Javed Larijani, who is head of the ‘human rights council’ of the Iranian judiciary, has condemned international protests against the execution, saying that Iran's judicial system will not change its direction because of ‘Western attacks’ and ‘media pressures’. All I can say about this 'expert' is that he didn't graduate from our human rights programme.
In 1999, I visited Iran to lecture about international criminal law. I was asked by lawyers in the government whether Iran might be subject to prosecutions for crimes against humanity before the International Criminal Court because it conducts executions of women for adultery by stoning. I was then told there were a handful of such executions every year, and the question was a technical one: would this be a widespread or systematic attack on a civilian population? More recently, I was back in Iran and when I recalled this conversation. I was told: ‘We don’t do that anymore.’
At events in Iran, speakers always begin with homage to Allah who is described as ‘the most merciful’. But the State isn’t very merciful when it comes to capital punishment. Rather the opposite. Some explain that this thirst for barbaric punishments comes from Islamic laws and doctrines. But I think that Islam and its laws are indeed fundamentally 'merciful'. The problem is that barbaric regimes hide behind distorted and anachronistic versions of religious text as justification for what tyrants - whatever their religion - have been imposing on their people since time immemorial.

Movie star Lindsay Lohan, who has been sentenced to a prison term, of 90 days, for minor offences relating to drug and alcohol abuse, the administration of justice and breaches of probation orders. She has invoked the Universal Declaration of Human Rights. Apparently, she referred to article 5 of the Declaration on Twitter: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’ Lindsay Lohan may not be getting much public sympathy, but she has a good point and deserves our support. The United States is said to have about 2 million people in jail. This is hugely disproportionate to the practice in virtually every other country. Much of that is explained by imprisonment for minor crimes, like the case of Lindsay Lohan. Do they really need to put even more people in jail? She obviously has some problems that need solving, but who can seriously believe that a few months in jail is the answer?
The character limits on Twitter probably prevented Lindsay from explaining the subtleties of article 5, and its application to disproportionate punishments. In fact, this is an area where human rights courts and tribunals have been very reluctant to tread. Theoretically, a sentence that was grossly disproportionate to the crime could be challenged under article 5 of the Universal Declaration, or its manifestations in treaties like the International Covenant on Civil and Political Rights (art. 7) and the European Convention on Human Rights (art. 3). There is some case law at the European Court concerning disproportionate sentences imposed upon juvenile offenders, but I think that Lindsay is too old to qualify. Article 6 of the International Covenant on Civil and Political Rights restricts the death penalty to the ‘most serious crimes’, but again I don’t think this applies to Lindsay’s case.
I might be wrong, but the conviction is in California where they have a ‘three strikes’ law. So if she does this a couple of times more, could she be sent to prison for life without parole? That would clearly be a disproportionate sentence, and it would be condemned universally. There are significant numbers of old men and women in American prisons who have committed enough minor offences that they get put away forever.

Saturday, 10 July 2010

To celebrate the launch of the MA Human Rights and Business, Middlesex University (London, Hendon Campus) will host an interactive panel discussion on “Human Rights and Business: Towards Ethical Globalisation?” on 14 July from 6 to 9 PM. The panel will include Chris Avery (Director of the Business & Human Rights Resource Centre), Martyn Day (Senior Partner at Leigh Day &Co), Petter Matthews (Construction Industry Transparency Initiative), Stephanie Stocker (Clifford Chance) and Prof. Joshua Castellino, Head of the Law Department at Middlesex. Spaces are limited, so please confirm attendance with Sharon Procter at humanrights@mdx.ac.uk.
The MA is taught once a month in London, on Fridays and Saturdays, to accommodate professionals. For more information on the programme, click here.

Recent rulings by the South Korean Truth and Reconciliation Commission have held that on more than 100 occasions during the Korean war in the ealry 1950s civilians were killed by US troops. However, the Commission decided not to proceed with criminal charges, either because of a lack of sufficient evidence or because the killings were militarily justified, according to a report in today's New York Times.

Thursday, 8 July 2010

Two years ago, the first trial at the International Criminal Court went pear-shaped as the Trial Chamber ordered a stay of proceedings because of the inability of the Prosecutor to provide full disclosure. The trial began in 2009, but has hit another major snag abou the issue of so-called 'intermediaries'. These are individuals - NGOs, aid workers, etc. - who act as go-betweens between witnesses and the Office of the Prosecutor. Recently the Trial Chamber made orders concerning the disclosure of the identity of some of these intermediaries, but its rulings have not been followed by the Prosecutor.
Today, clearly frustrated by the defiance of the Prosecutor, the Trial Chamber decided to play hardball. It ordered another stay of proceedings in Lubanga, recalling that its authority to make such a stay had been confirmed by the Appeals Chamber and that a temporary stay of proceedings was just that, and would presumably become permanent at a certain point in time.
Here are some of the relevant passages from today's ruling:

21. The second problem, however, reveals a more profound and enduring concern. The Prosecutor, by his refusal to implement the orders of the Chamber and in the filings set out above, has revealed that he does not consider that he is bound to comply with judicial decisions that relate to a fundamental aspect of trial proceedings, namely the protection of those who have been affected by their interaction with the Court, in the sense that they have had dealings with the prosecution. Essentially, for the issues covered by Article 68 in this way, he appears to argue that the prosecution has autonomy to comply with, or disregard, the orders of the Chamber, depending on its interpretation of its responsibilities under the Rome Statute framework.
24. Article 68 of the Statute gives the Prosecutor positive protective obligations when investigating and prosecuting crimes - "the Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes" - but those responsibilities do not give him licence, or discretion, or autonomy to disregard judicial orders because he considers the Chamber's Decision is inconsistent with his interpretation of his obligations...
27. No criminal court can operate on the basis that whenever it makes an order in a particular area, it is for the Prosecutor to elect whether or not to implement it, depending on his interpretation of his obligations. The judges, not the Prosecutor, decide on protective measures during the trial...
28. The Prosecutor has chosen to prosecute this accused. In the Chamber's judgment, he cannot be allowed to continue with this prosecution if he seeks to reserve to himself the right to avoid the Court's orders whenever he decides that they are inconsistent with his interpretation of his other obligations. In order for the Chamber to ensure that the accused receives a fair trial, it is necessary that its orders, decisions and rulings are respected, unless and until they are overturned on appeal, or suspended by order of the Court.

Wednesday, 7 July 2010

Last month, there were newspaper reports of the judgment by Finnish courts convicting a Rwandan for having participated in the 1994 genocide. I have managed to obtain a copy of the summary of the decision.Thanks to Mikaela Heikkilä.

Saturday, 3 July 2010

The Prosecutor of the International Criminal Court continues to consider whether or not to initiate an investigation into the situation in Gaza. Last year, he was given jurisdiction over Gaza in a declaration filed by the Palestinian Authority in accordance with article 12(3) of the Rome Statute. The preliminary issue is whether the declaration is legally valid. Dr Michael Kearney, who has been working with the Palestinian NGO Al Haq, has written a very good article on this, published by the UCLA Human Rights & International Criminal Law Online Forum.

Friday, 2 July 2010

Today marks three years since I began this blog. There have been 700 entries to the blog over that time, and many comments from its readers. I am especially grateful to the many contributors, who send me information or documents that they have come across. I hope such participation in the life of the blog will continue.
It was originally started as a mechanism for me to keep in touch with my own doctoral students while I was on sabbatical leave. When the time came to tick the box indicating whether or not the blog could be accessed by the general public, I decided there was no reason not to open it up. If memory serves me, I was in Oxford as a visiting lecturer when I made the first posting, and when I figured out how to actually operate a blog (it isn't exactly rocket science). Since then, I have made postings from all corners of the globe, even in China, until 2008 when the authorities decided to prevent access.
Despite the name, it isn't just for doctoral students. But it does encourage some people to take the plunge and embark on what I call 'the Mount Everest of higher education', and I hope that will continue.
The blog now has many thousands of readers, according to Google Analytics. They are located around the world.
Thanks for reading, for contributing, and for telling others about it.
WS

David Scheffer, left, with Bianca Jagger and Andrew Clapham at the Kampala Review Conference

David Scheffer, the former (and first) United States Ambassador at Large for War Crimes Issues has written a wonderful op-ed in today's International Herald Tribune on the outcome of the International Criminal Court’s Review Conference.
David’s voice is very important not just as a former American diplomat but also as a an academic. He is professor of human rights at Northwestern University in Chicago. I join David, and other academics like Andrew Clapham of Geneva and Roger Clark of Rutgers, in welcoming the amendment of the Rome Statute to incorporate the crime of aggression.
Professor Scheffer was a regular contributor to my blog on the Kampala Conference and his perceptive articles on the negotiations provide a fine insight into the process of adoption of the amendment.

Thursday, 1 July 2010

The new United Kingdom Supreme Court, in R (on the application of Smith) v. The Secretary of State for Defence et al. [2010] UKSC 29, has ruled against the extraterritorial application of human rigthts law, dismissing an applicationby a soldier who had died on duty in Iraq. The judgment itself is a nightmare to understand, with each individual member of the Court writing a separate opinion and no common decision or agreed summary. Fortunately, the Court services have prepared a summary that assists in understanding the ruling. The decision(s) is (are) full of references to the international human rights authorities, including the notorious Bankovic decision of the European Court of Human Rights.Thanks to Eadaoin O'Brien.

The Editorial Team

W. Schabas, Y. McDermott, J. Powderly, N. Hayes

William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at Leiden University, emeritus professor human rights law at the Irish Centre for Human Rights of the National University of Ireland Galway, and an honorary professor at the Chinese Academy of Social Sciences, in Beijing and Wuhan University. He is the author of more than 20 books and 300 journal articles, on such subjects as the abolition of capital punishment, genocide and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. He was a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights and president of the International Association of Genocide Scholars. He serves as president of the Irish Branch of the International Law Association chair of the Institute for International Criminal Investigation. He is an Officer of the Order of Canada and a member of the Royal Irish Academy. Here is the full c.v.

Dr YvonneMcDermott is Senior Lecturer in Law at Bangor University, UK, where she is also Director of Teaching and Learning and Co-Director of the Bangor Centre for International Law. Yvonne is a graduate of the National University of Ireland, Galway (B. Corp. Law, LL.B.), Leiden University (LL.M. cum laude) and the Irish Centre for Human Rights (Ph.D.). Her research focuses on fair trial rights, international criminal procedure and international criminal law. She is the author of Fairness in International Criminal Trials (Oxford University Press, 2016).

Niamh Hayes has been the Head of Office for the Institute for International Criminal Investigations (IICI) in The Hague since September 2012. She is about to complete her Ph.D. on the investigation and prosecution of sexual violence by international criminal tribunals at the Irish Centre for Human Rights, National University of Ireland Galway. She previously worked for Women's Initiatives for Gender Justice as a legal consultant, and as an intern for the defence at the ICTY in the Karadzic case. She has lectured on international criminal law and international law at Trinity College Dublin and, along with Prof. William Schabas and Dr. Yvonne McDermott, is a co-editor of The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2013). She is the author of over 45 case reports for the Oxford Reports on International Criminal Law and has published numerous articles and book chapters on the investigation and prosecution of sexual and gender-based violence as international crimes.

Joseph Powderly is Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. Between September 2008 and January 2010, he was a Doctoral Fellow/Researcher at the Irish Centre for Human Rights, where he worked, among other projects, on a Irish Government-funded investigation and report into the possible perpetration of crimes against humanity against the Rohingya people of North Rakhine State, Burma/Myanmar. He is currently in the process of completing his doctoral research which looks at the impact of theories of judicial interpretation on the development of international criminal and international humanitarian law. The central thesis aims to identify and analyze the potential emergence of a specific theory of interpretation within the sphere of judicial creativity. Along with Dr. Shane Darcy of the Irish Centre for Human Rights, he is co-editor of and contributor to the edited collection Judicial Creativity in International Criminal Tribunals which was published by Oxford University Press in 2010. He has written over 80 case-reports for the Oxford Reports on International Criminal Law, as well as numerous book chapters and academic articles on topics ranging from the principle of complementarity to Irish involvement in the drafting of the Geneva Conventions. In December 2010, he was appointed Managing Editor of the peer-reviewed journal Criminal Law Forum. His research interests while focusing on international criminal and international humanitarian law also include topics such as the history of international law and freedom of expression.

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Interested in PhD studies in human rights?

Students interested in pursuing a doctorate in the field of human rights are encouraged to explore the possibility of working at Middlesex University under the supervision of Professor William A. Schabas and his colleagues. For inquiries, write to: w.schabas@mdx.ac.uk.